Patterson v Cohen [2005] NSWSC 740

Patterson v Cohen [2005] NSWSC 740

The application to set aside the costs order was refused because the evidence relied on by the applicants was not materially different from evidence previously considered by the court, there was no utility in setting aside the order as the same result would follow, and the principle of finality of litigation weighed against the exercise of discretion in the applicants' favour.

Parties
Plaintiff: Darcy Reginald Francis Patterson t/as H M Symonds & Britten; First Defendant: Yehuda Leon Cohen; Second Defendant: Sir Moses Montefiore Jewish Home; Third Defendant: Minter Ellison Lawyers
Jurisdiction
Australia
Judgment Date
22 July 2005
Procedural Posture
Motion to Set Aside Costs Order / Post Judgment (costs Application)
Outcome
Application dismissed; no order as to costs between plaintiff and second and third defendants; second and third defendants to pay first defendant’s costs of the motion; order 1 of orders made 30 June 2005 vacated as of today.
Legal Topics
Setting Aside Costs Order, Finality of Litigation, Costs of Motion
Civil Procedure Setting Aside Costs Order Finality of Litigation Costs of Motion

Case Brief

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Parties

Darcy Reginald Francis Patterson t/as H M Symonds & Britten

Plaintiff

Yehuda Leon Cohen

First Defendant

Sir Moses Montefiore Jewish Home

Second Defendant

Minter Ellison Lawyers

Third Defendant

Procedural Posture

Motion to Set Aside Costs Order / Post Judgment (costs Application)

Legal Issues

  1. 1 Whether the costs order against the second and third defendants should be set aside before entry of judgment
  2. 2 Whether there is utility in setting aside the costs order if no different result would follow
  3. 3 Whether the principle of finality of litigation precludes exercise of discretion to set aside the costs order

Ratio Decidendi

The application to set aside the costs order was refused because the evidence relied on by the applicants was not materially different from evidence previously considered by the court, there was no utility in setting aside the order as the same result would follow, and the principle of finality of litigation weighed against the exercise of discretion in the applicants' favour.

Court Disposition

Application dismissed; no order as to costs between plaintiff and second and third defendants; second and third defendants to pay first defendant’s costs of the motion; order 1 of orders made 30 June 2005 vacated as of today.

Orders

  • The second and third defendants' motion filed on 30 June 2005 is dismissed.
  • No order as to the costs of the motion as between the plaintiff and the second and third defendants.